After a federal judge declined to block provisions of a Texas law that allow local law enforcement to ask about a person's immigration status during a detention, lead plaintiffs say that will not result in a major change.

People demonstrating against Senate Bill 4, the "sanctuary cities" ban, march near the Riverwalk in San Antonio on June 26, 2017.
Robin Jerstad for The Texas Tribune

After a successful challenge against parts of Texas' new immigration enforcement law, a Latino advocacy group on Thursday said that the two provisions allowed to stand wouldn't create drastic changes in the way local law enforcement operates.

On Wednesday night, U.S. District Court Judge Orlando Garcia granted a preliminary injunction and blocked key provisions of Senate Bill 4, a law Gov. Greg Abbott signed in May that seeks to outlaw “sanctuary” jurisdictions in Texas. As passed, the law forbids police chiefs, sheriffs, constables and other jail administrators from preventing an officer to ask about a person’s immigration status during an arrest or lawful detention, or from sharing that information with federal officials.

It would also require that jail officials honor all requests from federal Immigration and Customs Enforcement officials to hold an inmate for possible deportation, and it forbids governments from “adopting, enforcing, or endorsing” policies that materially limit immigration enforcement. Garcia blocked those provisions, arguing the detainer provision could violate a person’s Fourth Amendment protections against unreasonable searches and seizures. He also said that preventing officials from crafting policies was an infringement of the First Amendment.

Abbott and other backers of the bill have argued that detainers are commonsense measures to ensure violent criminals do not abscond or commit more crimes after being freed from custody. On Thursday, Paxton's office filed an appeal of Garcia's ruling with the U.S. Court of Appeals for the Fifth Circuit in New Orleans. He also asked Garcia to stay his own injunction pending the appeal.

The ability for local law enforcement officers to ask about status, and then turn that information over, are parts of SB 4 that some of its opponents fear the most. Those items weren’t blocked. But Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), attorneys for the plaintiffs in the lawsuit, said those provisions would probably not alter day-to-day operations significantly if they are followed the way the law states.

“These two provisions left in place largely replicate what is existing law,” he said Thursday during a call with reporters. “We further note — and Judge Garcia made clear — that the rights and the ability of police to act on any information received extends only to turning that information over to federal immigration authorities.”

That means that an officer can’t arrest that person based solely on the information. And, Saenz said, an officer can’t demand that information during a lawful stop.

“Every person has a right to refuse any question posed by a local police officer or sheriffs deputy about immigration status, and the refusal to answer questions about immigration should have no repercussions,” he said.

Garcia said in his ruling that his decision to not block those provisions were due, in part, to a 2012 U.S. Supreme Court ruling that let similar provisions in an Arizona law stand. Garcia’s decision also means that a police chief or other supervisor can’t prevent officers from making the inquiry.

“I would say you can advise your police officers that it is unwise to engage in that questioning — you cannot prohibit them from choosing to engage in that questioning,” Saenz said.

But chiefs and others can still issue guidance that states immigration inquiries could undermine the legitimacy of an otherwise lawful stop, and erode trust within the community. Saenz added that according to the judge’s ruling, a lawful stop cannot be prolonged just to make an immigration inquiry, which is part of what made the Arizona statute ineffective.

Nina Perales, MALDEF’s vice president of litigation, said that because the provision in SB4 that outlaws limiting immigration enforcement was stricken, police departments have the same freedoms they have always had to craft policy.

“Because he found that provision to be unconstitutional, what he is saying in the opinion is that police departments can set priorities for their officers, even if that makes it more difficult for officers to engage in immigration inquires,” she said.

Quality journalism doesn't come free

Perhaps it goes without saying — but producing quality journalism isn't cheap. At a time when newsroom resources and revenue across the country are declining, The Texas Tribune remains committed to sustaining our mission: creating a more engaged and informed Texas with every story we cover, every event we convene and every newsletter we send. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. Do you value our journalism? Show us with your support.